The so-called ‘religious liberty’ aka ‘a license to discriminate’ legal fight

A self-anointed “Right Hand of God” Christian who deems herself to speak on behalf of God and to be the judge of God’s divine wisdom, Rowan County (KY) Clerk Kim Davis (right in photo, h/t NY Times), has got her self-righteous Bible thumping butt in big trouble with her refusal to issue marriage licenses to same-sex couples in Rowan County, Kentucky.

Clerk Kim Davis is determined to be the Religious Right’s test case to redefine “religious liberty” broadly as an exception to anti-discrimination laws, i.e., a “license to discriminate” against gays, or anyone else, based upon her individualized deeply held religious beliefs.

Clerk Davis is represented in this lawsuit by Liberty Counsel (SourceWatch), affiliated with the Jerry Falwell-founded Liberty University School of Law. It is “a nonprofit litigation, education and policy organization dedicated to advancing religious freedom, the sanctity of human life and the traditional family.”

Clerk Davis is an elected public servant sworn to uphold the Constitution of the United States and the Commonwealth of Kentucky. Section_228 – Kentucky Legislature, and 30A.020 Oath of clerk and deputies. Clerk Davis, however, insists that she answers to a “higher authority.”

Let’s just say that things are not going well for Clerk Davis. On Monday evening, the U.S. Supreme Court, without dissent, passed up its first chance to act decisively on the rising religious freedom protest against same-sex marriage. Lyle Denniston at SCOTUSblog reports, Kentucky clerk loses on same-sex marriage plea:

In a one-sentence order, the Court refused a Kentucky county clerk’s plea for protection from having to issue marriage licenses, including licenses for same-sex partners, to which she objects as a matter of faith.

The Court’s denial order put into effect an order by a federal trial judge in Ashland, Ky., requiring Rowan County Clerk Kim Davis to give up her no-licenses policy.  District Judge David L. Bunning had issued the order to implement the Supreme Court’s decision in Obergefell v. Hodges after the state’s governor ordered all county clerks to give official permission to gay and lesbian couples to wed.

The Supreme Court’s order was not a final ruling on Davis’s argument that her right to freedom of conscience should give her an exemption from having any part in the licensing process that would lead to same-sex marriages.  She has an appeal on that question now pending at the U.S. Court of Appeals for the Sixth Circuit.

She is now faced not only with Judge Bunning’s order, but a mandate from Governor Steven Beshear that she either issue licenses to same-sex couples or resign her office.

The Plaintiffs wasted little time requesting that Judge Bunning hold Clerk Davis in contempt of court, when she again refused to issue marriage licenses to same-sex couples in defiance of the court order this morning. Rowan County clerk defies court order, continues to deny marriage licenses. Judge Bunning ordered a contempt hearing for Thursday morning. Judge orders Rowan clerk to appear in court Thursday after she again denies marriage licenses:

A federal judge has ordered Rowan County Clerk Kim Davis and her deputies to appear in his courtroom Thursday and explain why Davis should not be held in contempt of court for refusing to issue marriage licenses.

Shortly after opening her doors Tuesday, Davis told two same-sex couples who asked for marriage licenses that she would not issue them, despite a federal court injunction ordering her to do so.

In a brief but tense encounter between Davis and a couple dozen marriage-equality demonstrators who crowded into her office, the clerk repeatedly refused to comply with the court order.

“Under whose authority are you not issuing marriage licenses?” someone in the crowd asked Davis.

“Under God’s authority,” she responded.

“I’m willing to face my consequences and you all will face your consequences when it comes time for judgment,” she said. “Plain and simple.”

Davis, an Apostolic Christian, has refused to issue any marriage licenses in Rowan County since the U.S. Supreme Court legalized same-sex marriage June 26. U.S. District Judge David Bunning issued a preliminary injunction Aug. 12 ordering Davis to resume issuing licenses. She appealed to the 6th Circuit U.S. Court of Appeals and the Supreme Court, both of which denied her.

Lawyers for local couples who are suing Davis, demanding marriage licenses, quickly filed a motion Tuesday asking Bunning to find the clerk in contempt of court and fine her.

“Plaintiffs do not seek to compel Davis’ compliance through incarceration,” wrote William Sharp, legal director for the ACLU of Kentucky, which represents the couples.

“Since defendant Davis continues to collect compensation from the commonwealth for duties she fails to perform, plaintiffs urge the court to impose financial penalties sufficiently serious and increasingly onerous to compel Davis’ immediate compliance without further delay,” Sharp wrote.

Bunning responded by scheduling a contempt hearing for 11 a.m. Thursday at the U.S. District Courthouse in Ashland.

Separately, Attorney General Jack Conway continued to review a request from Rowan County Attorney Cecil Watkins, who wants a special prosecutor appointed to decide if Davis is guilty of official misconduct for failing to perform her public duties. The charge, a misdemeanor, could bring up to a year in jail.

Davis, a Democrat, was elected to a four-year term last November. She cannot be removed from her roughly $80,000-a-year post unless the General Assembly impeaches her.

In a prepared statement released by her lawyers, Davis said “I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus himself regarding marriage,” Davis said. “I was elected by the people to serve as the county clerk. I intend to continue to serve the people of Rowan County, but I cannot violate my conscience.”

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Davis’ supporters praised her for standing firm in defense of a traditional definition of marriage. Wearing a camouflaged “God’s Army” baseball cap, Norman Elam of Morgan County said the Supreme Court’s landmark gay marriage decision was “Biblical prophesy,” a sign of the end times.

“I’m here today to save America — not just spiritually, but physically, to keep this nation great,” Elam said. “This (same-sex marriage) is designed to break down the family unit in America and cause the country to fall from within. I feel like that’s what gays and lesbians are doing.”

Clerk Kim Davis is just the tip of the spear of the Christian Right’s attempt to redefine “religious liberty” broadly as an exception to anti-discrimination laws, i.e., a “license to discriminate” against gays, or anyone else, based upon her individualized deeply held religious beliefs. The Religious Right will keep bringing these cases, just as they have anti-abortion cases, until they can get their case in front of a like-minded conservative activist judge.

In a tangentially related matter, a federal judge ruled on Monday that employers do not need to provide insurance coverage for contraception even if their objections are moral rather than religious (note the individualized nature of the beliefs, not an organized religious doctrine or dogma). Judge Allows Moral, Not Just Religious, Contraception Exemptions:

The case concerned a group called March for Life, which was formed after the Supreme Court recognized a constitutional right to abortion in 1973 in Roe v. Wade. The group, Monday’s decision said, “is a nonprofit, nonreligious pro-life organization.”

It opposes methods of contraception that it says can amount to abortion, including hormonal products, intrauterine devices and emergency contraceptives. Many scientists disagree that those methods of contraception are equivalent to abortion.

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March for Life sued the Department of Health and Human Services and other agencies, arguing that the government had violated equal protection principles by treating it differently from “similarly situated employers.” The government responded that it had a rational basis for the differing treatment, as the group “is not religious and is not a church.”

Judge Richard J. Leon of the United States District Court for the District of Columbia rejected the government’s position. “This not only oversimplifies the issue — it misses the point entirely,” Judge Leon wrote.

“The characteristic that warrants protection — an employment relationship based in part on a shared objection to abortifacients — is altogether separate from theism. Stated differently, what H.H.S. claims to be protecting is religious beliefs, when it actually is protecting a moral philosophy about the sanctity of life.”

“H.H.S. may be correct that this objection is common among religiously affiliated employers,” he added. “Where H.H.S. has erred, however, is in assuming that this trait is unique to such organizations. It is not.”

Giving religious groups special treatment, Judge Leon wrote, amounts to “regulatory favoritism.” Moral philosophy, he said, should be accorded the same treatment as religious belief.

The government is likely to appeal the decision to the United States Court of Appeals for the District of Columbia Circuit.

[Arizona-based] Alliance Defending Freedom, a nonprofit law firm that represented March for Life, called the decision a groundbreaking development in litigation over what it called the health care law’s contraception mandate. “The order is the first one to be granted in favor of an organization opposed to the mandate for pro-life reasons based on moral convictions instead of religion,” the firm said in a statement.

The case also concerned two employees of March for Life who, unlike their employer, did raise religious objections to having insurance that included coverage for some kinds of contraceptives. They argued that the government had violated the Religious Freedom Restoration Act of 1993, which requires skeptical review of laws and regulations that burden the exercise of religion.

Judge Leon agreed. The health care law, he said, had put the workers “between the proverbial rock and a hard place.”

The Religious Right has numerous well-funded legal organizations such as Alliance Defending Freedom that are actively seeking what can only be considered a “carve out” for fundamentalist Christians to not have to comply with anti-discrimination laws, or other laws of general application to the public to which they object. They want their own theocratic country, or more accurately, they want to impose their theocracy on everyone else through the courts.